The Price of Torts

Defensive Medicine and the Illusion of Certainty

Emergency medicine is designed for catastrophe. Its textbook image is the resuscitation bay: a patient gasping through pulmonary edema, a gunshot victim arriving with compressions in progress, a stroke patient wheeled in within minutes of symptom onset. Yet this is not the reality of most emergency practice. The far greater portion of my work is not to treat emergencies but to prove that none exists. In case after case, I am tasked not with intervention but with exclusion, not with curing disease but with demonstrating that the disease we fear is absent.

The reason for this inversion of purpose lies in the peculiar liability climate of American medicine. In theory, physicians practice science, a discipline of probabilities. In practice, we are judged by law, a system that demands absolutes. The acceptable miss rate for serious conditions, as defined by the courts and the lawyers who argue before them, is zero. It does not matter whether the patient appeared well, whether their symptoms were nonspecific, or whether the statistical probability of disease was vanishingly small. If the patient returns hours or days later with a dire diagnosis, the prior physician is assumed to have failed.

This legal reality collides with the limits of medical science. No test provides certainty. All tests exist on a continuum of probability, dependent on pre-test likelihood, prevalence of disease, and false positive and negative rates. Even the most sensitive scan or laboratory assay cannot exclude disease with perfection. To believe otherwise is to misunderstand statistics, yet that misunderstanding is baked into the expectations of both patients and courts.

Patients themselves demand certainty. Few arrive with an understanding of conditional probability or likelihood ratios. For them, a test result is not a shift in probability but a binary answer: yes or no, sick or well. Physicians are often not much better, as formal training in biostatistics is thin and quickly forgotten. Under such conditions, tests are ordered not as tools of reasoning but as talismans of certainty. They serve the patient who wants to be reassured and the lawyer who will later argue that “everything was not done” if the outcome is poor.

The culture of medicine reflects this defensive posture in its very language. Physicians rarely order single, tailored tests. Instead, they order batteries of them, panels that cover a wide range of unlikely possibilities. Results are expected to be negative. The patient with chest pain does not undergo evaluation to “diagnose” but to “rule out” a heart attack. A test that returns abnormal is described not as “positive” but as “non-reassuring.” The words we use betray the mindset of a profession that has come to see its role less as the discovery of truth and more as the protection of itself from blame.

The emergency department has become the liability sponge of the health system. Outpatient clinicians, faced with a complaint that could be construed as an emergency, frequently redirect the patient to the ER. It does not matter whether the patient is stable, or whether the problem is chronic and longstanding. The outpatient physician wishes to transfer not the patient but the liability. Once the patient passes through my doors, I assume the full weight of risk. The unspoken transaction is clear: the emergency physician will order the expensive studies, deliver the negative results, and absorb the potential lawsuit if events take an unexpected turn.

The cost of such a system is staggering, and not only in dollars. Billions are spent annually on unnecessary scans, lab panels, and hospital admissions. Patients are exposed to radiation and contrast dyes that carry real risks. Incidental findings lead to cascades of further testing, biopsies, and procedures, many of which discover nothing and some of which cause harm. More insidiously, time and attention are diverted from the care of those who are truly ill. A crowded ER waiting room filled with patients referred “just in case” delays the stroke patient or trauma victim who most needs immediate care.

Yet the greatest cost is cultural. The emergency physician was once imagined as a figure of acute intervention, trained to rescue the dying. In reality, we have become professional excluders, adjudicating the absence of disease for fear of legal reprisal. Defensive medicine distorts the very identity of the specialty. It erodes trust, consumes resources, and undermines the scientific integrity of practice.

Defensive medicine is not an accident of individual caution but the predictable product of the American tort system. The law demands certainty where none exists, and physicians comply by manufacturing the illusion of certainty through endless testing. Both patients and doctors are trapped in a cycle of mistrust, misled by a system that substitutes legal protection for clinical judgment. Instead of ordering tests to discover truth, physicians are compelled to order them to avoid blame. The courtroom, not the clinic, has set the standard. The result is waste, mistrust, and the slow erosion of confidence in both doctor and patient. So long as the law insists upon perfection, medicine will remain shackled to an illusion, practicing in fear of judgment rather than in service of health.

This essay is the first of a series on defensive medicine. Read Part 2, “The Alienated Patient,” here.